positive that the consideration was not as expressed in the mortgage sued on, but as expressed in the original mortgage given to secure the debt in the first instance.

I cannot agree to the seventh conclusion of fact, that no fraudulent misrepresentations or promises whatever were made to appellant to obtain either the original notes or the note sued on, without usurping all the functions of the jury. This conclusion assumes as proven the very question in the case, when the evidence was sharply contradictory from beginning to end, and much evidence was excluded by the court that, as circumstances tending to throw light upon the acts and intentions of the appellees, I think was competent, and might have weighed much with an impartial jury. This, taken in connection with the erroneous charges given as hereinafter shown, and with the erroneous admission of a corrected and abandoned pleading filed in the case, all bearing directly upon this very question, could not fail to lead irresistibly to the verdict found by the jury, and to no other.

Nor can I agree with my brothers on the final conclusion of fact found by them, that "a contrary verdict on the issues involved in conclusions 6 and 7 would have been contrary to the manifest weight and great preponderance of the evidence." I find the evidence nearly equally balanced, and amply sufficient to sustain a verdict either way.

In the second paragraph of the court's charge, the jury were instructed that "if you find and believe from the evidence that, about the time of the execution of the note in controversy herein, W. H. Featherston, acting for himself and for the other plaintiffs, fraudulently represented to and promised the defendant that they had made arrangements with the Union Trust Company to iron the Red River & Southwestern Railway from Henrietta, Texas, to Archer, Texas, and intended to and would build said railroad within a reasonable time, and that said representation was false, and said promises broken, and that, at the time of making such representations and promises, said Featherston did so with the design of cheating and defrauding the defendant, and had no intention of performing said promises or having it done, but used them merely as false pretenses to induce the defendant to execute the note in controversy, and that defendant relied upon said representations and promises, and was deceived thereby, and thereby induced to execute the note in controversy, then you will find for the defendant." It will be observed that, both by the pleading and this charge, two kinds of misrepresentation are presented: (1) The representation of an existing fact, viz. that they (appellees) had made arrangements with the Union Trust Company, etc.; (2) that appellees intended to and would build the road within a reasonable time. The charge, in order to invalidate the note, required that both of these representations should have been made "with the design of

cheating and defrauding the defendant." My view of the law is that if one, by making an untrue statement of an existing fact, induces another to believe and rely thereon, to his prejudice, the transaction is fraudulent in law, whether the one making the statement so intended it or not. He has no right to avail himself of a contract obtained by his own untrue statement of a material matter, even though he may have himself honestly believed it to be true. Culberson v. Blanchard, 79 Tex. 492, 15 S. W. 700. That part of the charge, therefore, which required the statement that appellees had already made arrangements with the Union Trust Company to have been made with fraudulent intent,

was erroneous.

In the fourth paragraph of the court's charge, the jury were instructed that "if you find and believe from the evidence that the note in controversy herein was given in renewal of two other notes theretofore given by the defendant to C. W. Easley, treasurer of the Red River & Southwestern Railway Co., and by said company transferred to plaintiffs, and in consideration of the cancellation of said two notes, then you will find for the plaintiffs, unless you find that said two notes were procured by fraud, under the fifth subdivision of this charge, and that defendant, at the time of the execution of said note in controversy, was ignorant of said fraud, if, under the evidence and charge of the court, you find such fraud." It is now well settled that contracts of this character, obtained by specious and false representations and promises, whether made in relation to existing facts or in relation to matters and things to be performed in the future, are alike viewed with disfavor by courts of law as well as by courts of equity, and are fraudulent and voidable; and such fraudulent conduct may be relied upon to cancel contracts based upon or induced by such promises and representations, as well as urged as a defense in bar of the enforcement of contracts thus obtained. Henderson V. Railroad Co., 17 Tex. 560; Greenwood v. Pierce, 58 Tex. 130; Railway Co. v. Jones, S2 Tex. 156, 17 S. W. 534; Railway Co. v. Titterington, 84 Tex. 218, 19 S. W. 472; Railway Co. v. Pittman, 23 S. W. 318, 4 Tex. Civ. App. 172; History Co. v. Flint (Tex. App.) 15 S. W. 912; 2 Pom. Eq. Jur. § 877, and note 3; Abb. Tr. Ev. (1st Ed.) 294, 787. I called attention above to the fact that appellees did not seek a recovery upon the two original notes referred to in this charge. I am of opinion that, no matter how fair the original transaction may have been, no recovery could have been had in this case by appellees if the note sued upon was obtained by fraud, as alleged by appellant. I am also of opinion that the fact that this note may have been given in renewal of previous notes which were valid would not prevent it from being invalidated upon the ground of fraud if in fact the renewal was obtained by such means. In that

case it would be necessary to aver the terms of the original notes, and ask to recover thereon. The charge in question was therefore both erroneous and misleading.

I am also of opinion that the evidence excluded by the court, as shown in bills of exception Nos. 1, 4, 6, 7, 11, 12, 13, 14, 15, 16, and 19, was admissible as facts and circumstances tending to show, in a greater or less degree, the fraud and failure of consideration averred in the answer.

In defendant's "original answer," which set up total failure of consideration, as well as his "amended original answer," upon which he went to trial, and both of which were sworn to, as all pleas of failure of consideration are required to be, under article 1265, Rev. St. Tex., he pleaded that the original note first given by him to the railway company was payable as each five miles of the "grade" (instead of "railroad") was completed, until the same reached the west boundary line of Clay county, when all was to become due. This "original answer" was abandoned, and in lieu thereof the "amended original answer" was afterwards filed, in which it was alleged that the said first note executed by him was payable as each five miles of the railroad was completed, until the grade reached the west boundary line of Clay county, when all should be due. This difference in the two pleadings touches a vital question in the case, and one of the very points in controversy, that is, whether the note given by defendant was payable as the grade or embankment was completed, or as the road, with its trestles, culverts, and bridges, ready for the ties and iron, was completed. A great deal of contradictory evidence was offered on each side; and the plaintiffs, over the objections of defendant, were permitted to read in evidence to the jury the above allegation, from the original answer. This, I think, was material error. The original answer had been sworn to, and while the court permitted the defendant to explain that it was prepared hurriedly, to prevent a judgment by default, and that he did not have the note itself, nor the mortgage given to secure it, before him at the time, and also that he used the word "grade" to signify "roadbed," yet the evidence was strongly calculated to influence the jury, probably more than any other evidence before them. Rule 12 (20 S. W. xii.), for the government of district and county courts, provides: "An amendment may be made by either party, upon leave of the court for that purpose, or in vacation, as prescribed by the statute; the object of an amendment, as contradistinguished from a supplemental petition or answer, being to add something to, or withdraw something from, that which has been previously pleaded, so as to perfect that which is or may be deficient, or to correct that which has been incorrectly stated by the party making the amendment." A portion of rule 13 (20 S. W. xii.) provides: "The parv.35s.w.no.1-2

ty amending shall point out the instrument, with its date, sought to be amended, * and amend such instrument by preparing and filing a substitute therefor entire and complete in itself." Rule 14 (20 S. W. xii.) provides: "Unless the substitute shall be set aside on exceptions for a departure in pleading, or on some other ground, the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause, unless some error of the court in deciding upon the necessity of the amendment, or otherwise in superseding it, be complained of, and exception be taken to the action of the court, or unless it be necessary to look to the superseded pleading upon a question of limitation." These rules clearly indicate that the abandoned pleading is to be considered no longer any part of the record, unless for the purposes embraced in some of the exceptions given in rule 14 (20 S. W. xii). So it is not competent as an admission of record.

Is it competent as an admission of any character? The fact that it is found in a pleading required by law to be sworn to, and which is sworn to, I think, does not affect the question of its admissibility. It must be governed by the same rules of evidence that reject or admit admissions contained in abandoned pleadings not sworn to. All pleadings setting up failure of consideration as a bar to recovery on any written contract are by our statute (article 1265, § 10) required to be verified by affidavit. The right to amend the pleadings proper in any case is not restricted to those not sworn to, but it applies equally to verified pleadings. No distinction is made by the rules above cited, nor by our statutes. Rev. St. Tex. art. 1192, provides: "The pleadings may be amended under leave of the court, upon such terms as the court may prescribe, before the parties announce themselves ready for trial, and not thereafter." The rule is clear and well settled that the pleadings of a party in another suit involving the same issues, upon which he had relied on the trial of such suit, and which had been sworn to by him, are competent evidence against him as solemn admissions. Buzard v. McAnulty, 77 Tex. 445, 14 S. W. 138, and cases there cited; Wheeler v. Styles, 28 Tex. 245. But I do not think the same rule applies to an abandoned or corrected pleading. Coats v. Elliott, 23 Tex. 606; Medlin v. Wilkens, 1 Tex. Civ. App. 469, 20 S. W. 1026; Railway Co. v. Clark (Ark.) 25 S. W. 504; Mecham v. MeKay, 37 Cal. 165; Ponce v. McElvy, 51 Cal. 223 (where the pleading was verified); Stern v. Loewenthal, 77 Cal. 340, 19 Pac. 579; Wheeler v. West, 71 Cal. 126, 11 Pac. 871; Holland v. Rogers, 33 Ark. 253; Kimball v. Bellows, 13 N. H. 58; 1 Greenl. Ev. § 171, note a; Starkie, Ev. (10th Ed.) 450, 640. Mistakes are often made in pleadings, and the office of an amendment is to correct the mistake; but if such mistakes, after having

been withdrawn and corrected, may be read in evidence against a party, the law allowing him to amend and correct his pleadings would be almost worthless, and the case would be tried, perhaps, not upon the truth and facts, but upon the mistakes made by the parties in formulating their issues, which may have been discovered to be such, and corrected. Phillips v. Smith, 110 Mass. 61; Taft v. Fiske, 140 Mass. 250, 5 N. E. 621. It is his right to amend until he gets his pleadings correct and true, and when he has done this, the pleadings upon which he stands on the trial may be read as admissions of record against him, whether sworn to or not; but not his mistakes made in his efforts to perfect his pleadings, as contained in papers abandoned by him because, perhaps, of those very mistakes. One of the features of our system of pleading allows a defendant to plead and rely upon as many several matters, whether of law or fact, as he may think necessary for his defense, although they may be wholly inconsistent, provided they are filed at the same time and in due order of pleading. Rev. St. art. 1262; Welden v. Meat Co., 65 Tex. 487.

In my opinion, the fact, as in this case, that the party to the suit is a lawyer, and drew the pleading himself, and swore to it, would not change the rule. A lawyer is as much entitled to the privileges and protection granted by the rule as any other person, and is as liable to make mistakes as anybody else; and such mistakes in the preparation and perfecting of the pleadings in bringing the case to issue ought not to affect the trial of the case on its merits, or even be referred to before the jury. Coats v. Elliott, 23 Tex. 606; Medlin v. Wilkens, 1 Tex. Civ. App. 469, 20 S. W. 1026; Railway Co. v. Clark (Ark.) 25 S. W. 504; 1 Greenl. Ev. § 171, note a; Starkie, Ev. (10th Ed.) 450, 640. The case of Boots v. Canine, 94 Ind. 410, is not well considered, nor is it supported by the authorities cited on this subject. The court in that case fails to draw the distinction between pleadings which were relied on as final in other actions and the abandoned and corrected pleadings of the case being tried. On page 414 of that opinion, the court cited, to sustain its views, the case of Broadrup v. Woodman, 27 Ohio St. 553. that case the pleading offered in evidence was the party's answer in another and different action. It also cites Hobson v. Ogden's Ex'rs, 16 Kan. 388. In that case Justice Brewer, in holding the evidence admissible, says it was a certified copy of a verified answer filed by the party in another previous action in another state. It also cites Railway Co. v. Jones, 30 Kan. 601, 2 Pac. 657, where the same distinguished justice admits the evidence, because it was a certified copy of a verified pleading in a former and different case. It also cites Ayres v. Insurance Co., 17 Iowa, 176. The pleading offered in evi

In

dence was a copy of the answer in another and different action. It also cites Meade v. Black, 22 Wis. 241. The pleadings there offered were the complaint and answer in ejectment in another suit for the same land. And the court was equally unfortunate in the citation of the case of Cook v. Barr, 44 N. Y. 156. And these cases are the main ones relied on to sustain the decision in that case, and not a single one is in point. Be sides, that court seems to have been impress ed with the necessity of explaining to the profession that the question was there "presented in a peculiar form." The court say: "The record shows that there had been issues formed and a trial had; that the appellants successfully relied upon their answers, and the case came to this court, and the judgment was reversed, but not upon the answers; and that after this reversal the original answers were superseded by amendment." Id. 410. After stating that the evidence offered was an allegation in the original answers that the agreement to arbitrate was oral and not in writing, and that it was offered as an admission, to contradict the amended answers of defendants then relied on, averring that the agreement was in writing, the court then continues: "It will be observed that the answers had stood through one trial and through an appeal as statements of the appellants' defense, and that they had placed these pleadings before the trial and appellate courts as true statements of the facts of their case. We can perceive no reason why the answers did not, under these circumstances, constitute some evidence of the facts stated in them." Id. 411. On the same page, the court continues: "We think the rule is correctly stated by Mr. Wharton, who says: 'It is proper to add at this place that the pleadings of a party in one suit may be used as evidence against him in another, not as estoppel, but as proof, open to rebuttal and explanation, that he admitted certain facts.' 1 Whart. Ev. § 838. This is what we rule here. The answer, having been affirmed to be true for several years, and acted upon through one trial and one appeal, should be deemed evidence of admissions, but evidence open to explanation." The cause before us is entirely different. The record here shows that the defendant, Barrett, prepared and filed his answer hurriedly, to prevent a judgment by default; and without examining the record of the mortgage or seeing the note, which, he says, was in the possession of the adverse parties, he alleged that the original note was payable as each five miles of the "grade" was completed, but that soon afterwards, and before any trial was had, he examined the mortgage, and found that he had made an incorrect statement, for the mortgage described the note as payable as each five miles of "railway" was completed; and he at once prepared and filed his amended answer, stating such to be the condition of the

note, and thus corrected the mistake made in the original answer.

The court charged the jury, at the instance of the plaintiffs, "that by 'false or fraudulent misrepresentations,' as used in the main charge, is meant the false or fraudulent misrepresentation of a material fact, and not merely a statement of opinion, judgment, probability, or expectation." This charge, it will be seen from my views herein previously expressed, is erroneous, and not the law of this case, as many of the alleged false and fraudulent representations relied on by the defendant, though not all of them, were made with reference to things to transpire in the future, and, I hold, are, if proven, as complete a bar as if they had been made concerning a present ascertainable fact, provided they formed the consideration which induced defendant to enter into the contract.

In this case it is made to appear by a bill of exceptions that a stenographer was appointed by the court below at the instance of the plaintiffs (appellees), and that for this reason his fees were taxed against them. If this stenographer was appointed by the court, as required by article 1295, Rev. St., I think his compensation should have been taxed against the losing party, as other rosts in the case. Article 1296 provides: "Reasonable compensation, not to exceed twenty cents per hundred words, shall be allowed such stenographer, to be fixed by the court and taxed in the bill of costs." Article 1421 provides: "The successful party to a suit shall recover of his adversary all the costs expended or incurred therein, except where it is or may be otherwise provided by law." I think the expense of writing out the shortband notes made by the stenographer is a part of the costs contemplated by the statute.

I think the judgment of the court below ought to be reversed, and the cause remanded.

HOLLAND v. THOMPSON. (Court of Civil Appeals of Texas. Feb. 29, 1896.) BOUNDARIES-INTENT OF GRANTOR-FOR THE JURY -BURDEN OF PROOF-ESTOPPEL.

1. Where the owner of a section of land has it surveyed, and divided into quarter sections, and numbered, and has the corners definitely fixed and established on the ground, and afterwards sells portions thereof, designating such portions by their quarter-section numbers, but, instead of calling for the stones set up by the 'surveyor, his deed calls for the unmarked line of an adjacent survey, which in fact lies beyond the distance called for in the deed, the question of what land the grantor intended to sell and convey is for the jury, as one of intention, to be gathered from all the facts and circumstances in evidence.

2. The question should be submitted without abstract instructions as to rules and presumptions which determine whether calls for course and distance or calls for unmarked lines and corners of adjacent surveys, shall control.

3. The burden of proof is on the grantee and those claiming under him to establish that the grantor intended to convey more than the land contained in the quarter sections as numbered and marked on the ground by his surveyor.

4. If the grantee fenced to his south line as he knew it to be, and as it had actually been surveyed on the ground by the surveyor and by himself, as assistant, and another grantee, relying on such designation of boundary, bought from their common grantor the land lying south of this fence, those claiming under the first grantee would be estopped from claiming land south of the fence.

Appeal from district court, Clay county; George E. Miller, Judge.

Action by A. C. Thompson against T. J. Holland to recover a strip of land. From a judgment in favor of plaintiff, defendant appeals. Reversed.

W. G. Eustis, for appellant. Stine, Chesnutt & Hurt and Templeton & Patton, for appellee.

HUNTER, J. Appellee sued appellant in the district court to recover a strip of laud 1,020 varas long, east and west, by 400 varas wide, north and south, containing about 72 acres, being part of section No. 20 of the M. E. P. & P. R. R. surveys in Clay county, which section was located in 1861, on the north and west sides of the northwest corner of the Montague county school land, and its south and east lines call to run with the north and west lines of said school land. The field notes of No. 20 as patented are as follows: "Beginning on the S. E. corner of survey No. 19, stake in prairie; thence east 935 varas, a stake in prairie; thence south, crossing Frog creek, 923 varas, a stake in north line of a 4-league survey made for Montague county school land; thence west 1,815 varas, the northwest corner of Montague county school land; thence south 977 varas, a stake in the west line of said school land; thence west 1,020 varas, a stake; thence north 1,900 varas, the S. W. corner of survey No. 19; thence east 1,900 varas, to the place of beginning." The record, in effect, discloses that this survey No. 20 was one of a series of section surveys made, or rather platted, from surveys lying north and west of it, and, when made or platted, was supposed to connect with the lines of the Montague county school land survey, as the map then in use in the surveyor's office of Clay county showed the lines to be. The Texas & Pacific Railroad Company became the owner of section 20 prior to January 1, 1889, and in the winter of 1888-89 caused the same to be surveyed by C. B. Patterson, who from 1882 to 1888 had been surveyor of Clay county, and caused its corners to be fixed and marked on the ground, by placing stones thereat. At the same time, it was divided into quarter sections of 160 acres each, and at the corners of each quarter section stones were set up to mark and definitely fix the same. These quarter sections were numbered. The east

quarter was marked and designated as No. 1, then followed on the west Nos. 2 and 3, and the south quarter was designated as No. 4. Mr. Patterson's undisputed testimony is that he found the full 640 acres within the lines he ran and marked for section No. 20; and that the south line of No. 20, as run out, marked, and established by him, lacked 447 varas of reaching the north line of the Montague county school land; and the east line of quarter section No. 4 lacked 347 varas of reaching the west boundary line of the said Montague county land. The record also shows that one R. L. Bolton was one of Patterson's chain carriers, and assisted in running and making the corners, and, of course, knew the corners of each quarter section, and on January 8, 1889, only a few weeks after this survey was made by Patterson, bought from the Texas & Pacific Railroad Company quarter sections Nos. 2 and 3; but the deed made to him, while purporting to convey quarter sections 2 and 3 of section 20, does not call for the stones set up by Bolton and Patterson, but calls for the lines and northwest corner of the Montague county school lands. The property is described as follows: "Known as lots Nos. 2 and 3 in survey No. 20; beginning at a stake 46.6 varas west of a stake set for the S. E. corner of survey No. 19; thence south 923 varas, a stake in the north line of a 4-league survey made for Montague county school land, which stake is 978.6 varas west of a stake set for the S. E. corner of said survey No. 20; thence west, with the north line of said Montague county school lands, 836.4 varas, to a stake, the N. W. corner of same; thence south, with the west line of same, 91.5 varas, which is 885.5 varas north of the western S. E. corner of said survey No. 20; thence west 1,020 varas, a stake in the west line of No. 20; thence north, with the said west line, 1,014.5 varas, a stake, the original N. W. corner of survey No. 20; thence east, with the north line of said survey No. 20, 1,856.4 varas, to the place of beginning,— the same containing 320 acres, more or less." To run the lines of No. 20 to the lines of the Montague county school land as now established would give No. 20 924 acres, instead of 640, being 284 acres excess. To run the lines of appellee's, Thompson's, quarter sections Nos. 2 and 3 as he claims them, would give him 470 acres, instead of 320, or 150 acres more land than the number of acres called for in his deed, and would take away from appellant's, Holland's, quarter section No. 4 about 72 acres, leaving him short that much. The evidence shows that, when Bolton bought quarter sections 2 and 3, he built a fence on the south line of No. 3, as run and established by Patterson; and Watkins, the surveyor, who in this case surveyed the land under order of the court, found the stones set by Patterson and Bolton at the corners of Thompson's south fence as built by Bolton, and as it stood at the time of the

trial. When Holland, the appellant, bought quarter section No. 4, the agent of the Texas & Pacific Railroad Company, who had had Patterson survey and divide up the section, showed him the lines and corners, and sold him all the land lying south of Bolton's fence, as being contained in quarter section No. 4. Bolton was then living on the land, and, as appellant testifies, recognized the fence as his south line. Bolton afterwards sold to Thompson, the appellee, who testifies that Bolton claimed that he had not fenced all his land on the south.

We are of opinion that the true issue in this case is as to what land the Texas & Pacific Railroad Company sold and intended to convey to R. L. Bolton by his deed bearing date January 8, 1889. Appellant complains of the following charges given by the court: "When, in the field notes of a survey, open, unmarked lines of adjacent surveys are callel for, and where, from the other calls of such adjacent surveys, the portion of such unmarked lines can be ascertained with accuracy, and there arises a controversy as to whether a call for course and distance or a call for such unmarked line of an adjacent survey shall prevail, such survey line should be given the dignity of an artificial object, and prevail over course and distance, unless the jury find and believe from the evidence that the locating surveyor was mistaken as to the position of such adjacent survey line when calling for it." "The law presumes that every officer does his duty, and the presumption is that the surveyor who located the surveys of land in controversy actually ran his lines as described in said field notes to the points called for therein; and the burden is upon the party who now challenges the correctness of the same to establish that fact." We are of opinion that these charges, while in the abstract correct, are not applicable to a case like this, where the owner of the land (the railroad company) had it actually surveyed, and divided into quarter sections, and numbered, with corners definitely fixed and established on the ground, and afterwards sold off portions thereof, designating such portions by their quarter-section numbers. The question is, what land did the railway company intend to sell and convey to Bolton? And this question should have been submitted to the jury as one of intention, to be gathered from all the facts and circumstances in evidence, unembarrassed by the rules and presumptions set forth in these charges. There was a conflict between the calls for distance and the calls for the lines and corners of the Montague school land, and the footsteps of the surveyor in subdividing the section 20 accord with the calls for distance. If the railway company intended to convey according to this work done on the ground in subdividing for sale, that intent, concurred in by Bolton, would control the conflicting calls for the lines of the Montague school land,